The Advocate
Informing Marine Engineers about legal matters
Authored by: Darren Williams, Williams & Company
Brought to you by www.dieselduck.net, comments to [email protected]
Criminal Negligence and Dangerous Operation of Vessels
It is commonly thought that criminal charges only arise where a
person intends to commit the criminal act. Television shows often
depict people being acquitted of a criminal charge, such as theft or
assault, because although it was proven that the accused committed
the theft or assault, there was no evidence they did so
intentionally. It is a mistake, however, to assume that when it
comes to operating a vessel, a mariner cannot be convicted of a
criminal offence simply because they did not have the positive
intent to commit the illegal act. With imprisonment being a possible
consequence, and lengthy prohibitions against operating vessels
being a common penalty, it is important for mariners to appreciate
the lasting effects of momentary carelessness at the helm.
Criminal Code Offences
The Criminal Code of Canada contains two important vessel-related
offences: dangerous operation of a vessel, and criminal negligence.
Regarding dangerous operation, s.249 of the Criminal Code states:
every one commits an offence who operates a vessel…. in a manner
that is dangerous to the public, having regard to all the
circumstances, including the nature and condition of those waters or
sea and the use that at the time is or might reasonably be expected
to be made of those waters or sea.
The more serious offence, criminal negligence, comes from s.219 of
the Criminal Code:
Every one is criminally negligent who in doing anything, or in
omitting to do anything that it is his duty to do, shows wanton or
reckless disregard for the lives or safety of other persons.
Negligence, Not Intent, is the Test
What is important about these offences in regards to mariners is
that, unlike most criminal charges, it is not necessary for the
Crown to prove the accused intended to commit the act in order to
get a conviction – it is enough that the accused was careless or
wilfully blind to the risk. In 2005 a pontoon boat capsized in Lake
Okanagan with 54 people aboard shortly after leaving the dock,
killing one passenger who was trapped in the head. The Crown charged
the skipper of that vessel with dangerous operation of a vessel
causing death and criminal negligence causing death on the basis
that the skipper should have identified that the vessel was
overloaded and unstable and that he should not have reversed the
vessel away from the dock after two passengers had untied the vessel
without instructions. The court said: “For either criminal
negligence or dangerous operation of a vessel, the basis of a
finding of guilt is negligence, and the question is whether, viewed
objectively, the accused exercised an appropriate standard of care.
If an accused has fallen below an accepted standard of care, then
the question is the extent to which he has fallen below the accepted
standard of care.”
The Court referred to the progressively severe nature of conduct
that was required to convict a person of mere negligence, versus the
more severe criminal charges of dangerous operation and criminal
negligence when it said: “negligent driving or negligent operation
of a vessel can be thought of as a continuum that progresses, or
regresses, from momentary lack of attention giving rise to civil
responsibility through careless operation of a vessel, under the
Canada Shipping Act, to dangerous [operation], culminating in
criminal negligence which is conduct that shows a wanton or reckless
disregard for the lives or safety of other persons”.
Dangerous Operation: Requires “Marked Departure” from Standard of
Care
Simple negligence (such as rear-ending someone in your car, or
losing an engine while docking and colliding with a moored vessel –
see “Foul Berths”, May 2008 Legal Desk) is not a criminal offence
and requires only that the conduct falls slightly below the
appropriate standard of care. Dangerous operation, on the other
hand, while still requiring negligence, requires that the
sub-standard conduct be more than just slight. In a 2006 B.C.
Supreme Court case that considered charges of dangerous operation
against a Campbell River man who injured passengers when he drove
his skiff at high-speed between dock pilings (but didn’t quite make
it), the court said “in order to establish dangerous operation, it
must be shown not only that the accused's conduct was a departure
from what a reasonable person would have done, but also that it was
a marked departure from that standard.” What is a “marked” or a
“significant” departure from appropriate care in the circumstances
can only be considered on a case by case basis, but suffice it to
say that it has to attract enough of the police’s attention to
warrant the preparation of the paperwork necessary to charge the
mariner. This more is likely when people are injured or killed,
though not a requirement.
Criminal Negligence: Requires Proof of Wanton or Reckless
Disregard for Safety
Criminal negligence, the most severe charge, on the other hand,
requires not only that the accused be shown to be negligent, but
that they had a wanton and reckless disregard for the safety of
others. In a recent Nova Scotia case where a mariner struck an unlit
military buoy in the fog, killing a passenger, the court declined to
convict the accused of criminal negligence causing death, but did
convict of dangerous operation causing death, finding that his
speed, in excess of 55 knots, was imprudent. In doing so the court
stated: “notwithstanding that I have found him in breach of a duty
imposed by law [the Collision Regulations], it is clear that mere
proof of such a breach is insufficient to support a conviction for
criminal negligence unless there is accompanying evidence of wanton
or reckless disregard for the lives or safety of others”.
The court considered whether the mariner disregarded, or was
willfully blind for the safety of others and said: “with no evidence
to the contrary, it would appear, and I find that he had a
reasonably held belief that it was safe to operate the vessel in
that direction. As there was no other vessel in the vicinity there
was no foreseeable risk in him doing so as he was also familiar with
the waters. Moreover, the boaters on the vessel had full confidence
in his seamanship and the manner in which he was operating the
vessel. The waters were calm, he was not intoxicated, he was a
competent operator and there was no evidence that the vessel was
being operated in an unsound mechanical condition or that a
reasonably prudent person would have foreseen that the buoy would
have drifted fifty-three to fifty-seven metres from its charted
position into the vessel's navigational pathway”. In short, the
court found the mariner had a genuine belief, at least to himself,
that he was operating the vessel safely, despite his excessive
speed.
Each of the above offences can arise whether or not the mariner’s
action or inaction results in damage to property or injury to a
person, but in the case of injury to a person, they can be upgraded
to, for example, dangerous operation “causing bodily harm” or
“causing death”, which results in higher penalties. On the lower
end, for example, in 1998 a Vancouver based seine-boat operator was
convicted of dangerous operation when he cut through a group of
pleasure vessels in Plumber Sound, narrowly avoiding a collision –
he was fined $2,500. On the other hand, the Nova Scotia master who
collided with the unlit military buoy was given an 18 month sentence
(to be served under house-arrest), and a 5 year operating
prohibition.
In summary, accidents while operating a vessel can give rise not
only to civil law suits between private parties for property damage
and personal injury, but also to criminal charges by the Crown for
dangerous operation and criminal negligence. While the tests for
being convicted of dangerous operation (“marked departure” from
standard of care) or criminal negligence (“reckless disregard” for
safety) are more stringent than simple carelessness, the
consequences are much greater and mariners are well advised to
remember that when it comes to operating vessels there can be a
surprisingly fine line between being careless, and being a criminal.
Darren Williams is a Barrister and Solicitor (Lawyer) specializing in Admiralty Law, which has jurisdiction over maritime matters. Darren has worked extensively on the water as well as in the courtroom. He is a Barrister & Solicitor based out of Victoria, British Columbia, Canada, practicing at the Law Firm of "Williams & Company".
On this webpage, he brings us timely and relevant articles on the legal aspects of being a Marine Engineer in today's world. Although the articles have a predominately Canadian flavour, we are sure you will find his legal point of view enlightening where ever you ship sails. Darren has also published other legal articles on general admiralty law, view them all at the Williams & Company website. You can reach Darren for questions or comments by email, or phone at 1 866 765 7777, in case of emergency try 250 888 0002.